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Dan Haar: The wrong way to give rights to home-care workers

1of2Jayne Turner, left, a client at Companions & Homemakers, and Heather Drake, her caregiver, at the agency offices in Farmington, where they discussed a state law that would bar home care agencies from enforcing noncompete agreements.Photo: Dan Haar/Hearst Connecticut Media

2of2Jayne Turner, left, a client at Companions & Homemakers, and Heather Drake, her caregiver, at the agency offices in Farmington, where they discussed a state law that would bar home care agencies from enforcing noncompete agreements.Photo: Dan Haar/Hearst Connecticut Media

Here’s a case where good intentions are about to lead to a bad outcome because the General Assembly has a habit of letting lawmakers stick policy changes into the state budget when no one is watching.

Most of us would agree the rise of noncompete agreements for low-wage workers is a reprehensible trend that states such as Connecticut, Massachusetts and especially California have rightly moved to stamp out.

These are the employment rules often imposed by large companies that bar employees from, say, working for a competitor for a year after leaving a job — whether or not they have access to business secrets. Coerced rules like that reduce wages by limiting competition for workers, often with no other benefit to employers.

Then, in the murky days as the state budget came together, someone snuck a ban on noncompete agreements into the massive budget document — applying only to “people who provide homemaker, companion or home health services.” Few lawmakers knew they were voting for it when they adopted a two-year, $43 billion spending plan last week.

It has an unintended consequence. As it turns out, the measure contained in the state budget that Gov. Ned Lamont is preparing to sign prohibits home care agencies from enforcing a ban on employees stealing the very clients they are assigned to serve.

That’s a form of noncompete agreement — the only one in use by Companions & Homemakers with its 3,000 caregivers — that would no longer be allowed under the secret measure pinned into Section 305 of the state budget bill. And that soon-to-be-banned rule is reasonable, unlike most noncompete agreements imposed by employers of low-wage workers.

The ban would threaten the whole model, the whole industry of agencies hiring caretakers and assigning them to work in the homes of elderly and infirm clients, Companions & Homemakers and other firms in the business say.

“It’s going to have a serious and dangerous effect in Connecticut,” said Ann Wilson, client services manager at Farmington-based C&H, which has 11 offices around the state. “It could open up in essence a free-for-all.”

Companions & Homemakers employs, for example, Heather Drake of Woodbury, who spends 21 hours a week with a client, Jayne Turner. Under the company’s rules, Drake can work for any of the 700 other home care agencies in Connecticut anytime she wants, even as she’s employed part-time by Companions & Homemakers.

Drake can also seek out her own direct clients if she wants to do so. The only thing she can’t do is approach Turner and her family and say, “Hey, let’s cut out the agency and make our own deal.”

She can even do that if she waits six months after leaving Companions & Homemakers, under the current company rules.

Losing that protection could destroy the agency system that employs 30,000 people, the home care companies say. More than 130 of the businesses have come together as the Coalition to Make Homecare Better, and will hold a last-ditch rally today, Wednesday, at 11 a.m. at the Legislative Office Building in Hartford.

Their goal: To persuade Lamont to veto the measure in the budget. That would be a good move by Lamont, who said in an interview Tuesday, “I’ll take a look at it...But maybe these workers should have more options.”

That’s an emotional tug, the idea of empowering workers. But it cuts two ways. Drake comes to tears, talking with me about the threat to the agencies, sitting with Turner, the elderly client who is still sharp but slowed by two bouts with cancer and other health issues, and Wilson, the client services manager.

“I do not want to see any of my clients or anybody else having to fend for themselves, and I don’t want to fend for myself,” said Drake, who’s been with C&H for five years. “I don’t want to go fishing around trying to find clients for myself.”

If the agency system fades, companies operating as registries could coordinate billing for freelance caregivers. Some believe clients could save money, as could the state, since much of the home care work is under Medicaid. That angers Drake.

“I find that reprehensible, to save money on the backs of...people that need care,” she said.

Workers’ advocates including Hartford Legal Aid Inc. and the Connecticut AFL-CIO testified for the earlier bill that never came to a vote, saying low-wage employees should have the protections of strict limits on noncompete agreements. They’re right in general but they never addressed this quirk.

It’s ridiculous that a narrow provision barely linked to the state budget, in a bill that never reached the floor of the state House of Representatives, should become law.

No other state bans these so-called nonsolicitation agreements. Connecticut might want to become the first. It’s a fine debate to have, how best to run this system.

There’s plenty of compexity — for example, the difference between what these agencies charge clients and what they pay their employees is just a few dollars an hour; private clients pay $17.50 to $21.50 an hour and the state pays about $16.50 an hour for Medicaid home care. The workers typically make well over the minimum wage and some receive health and other benefits.

Maybe other agencies abuse the noncompete rules and need to be reined in.

But what we have here isn’t a debate, it’s a banana republic imposition of law that has not been examined, based on someone secretly calling in a favor.

“We’re asking for fairness,” Wilson said, “and we’re asking for this protection for a very short period of time.”